Disciplines

Abstract

Foreigner! The word says it all. Verging on the politically incorrect, the expression is full of connotation and implication. A foreigner will face bias. By such a thought process, many people believe that litigants have much to fear in courts foreign to them. In particular, non-Americans fare badly in American courts. Foreigners believe this. Even Americans believe this.

Such views about American courts are understandable. After all, the grant of alienage jurisdiction to the federal courts, both original and removal, constitutes an official assumption that xenophobic bias is present in state courts. As James Madison said of state courts: “We well know, sir, that foreigners cannot get justice done them in these courts ….” Moreover, given that sometimes even federal substantive and procedural law expressly disadvantages foreigners, it seems reasonable to conclude that nonlegal bias sometimes also affects the outcome in American litigation involving foreigners.

Available data, however, do not support the conclusion that xenophobia is rampant in American courts. In fact, in federal civil actions, foreign plaintiffs and defendants win substantially more often than domestic litigants. After presenting these data, this Commentary discusses possible explanations for foreigners’ higher success rates. The best explanation is that foreigners are more selective in choosing cases to pursue to judgment.